Judge mulls new trial in $289 million Monsanto case

Judge mulls new trial in $289 million Monsanto ruling

October 11, 2018 at 6:09 AM EST - Updated October 11 at 6:09 AM

SAN FRANCISCO (AP) — A San Francisco judge said Wednesday she is considering tossing out the lion’s share of the $289 million judgment against agribusiness giant Monsanto and ordering a new trial over whether the company’s weed-killer caused a groundskeeper’s cancer.

San Francisco Superior Court Judge Suzanne Bolanos didn't formally rule on any issues after a two-hour hearing to consider Monsanto's demand to toss out the entire jury verdict in the first of thousands of similar cases across the country to go to trial.

The San Francisco jury in August said Monsanto knew — or should have known — its best-selling Roundup weed-killer causes cancer and hit the company with $250 million in punitive damages, which are designed to punish companies who act recklessly. The jury also awarded DeWayne Johnson $33 million in so-called "pain-and-suffering" damages and $6 million in actual damages.

A San Francisco judge mulls ordering a new trial in a $289 million judgment against Monsanto brought by a groundskeeper who says Roundup caused his cancer. https://t.co/QXHaJOJC9H

But Bolanos issued a written tentative ruling ahead of the hearing saying she intended to strike down the punitive damages and schedule a new trial on that issue.

During the hearing, Bolanos also said she was troubled by the $33 million in "non-economic" pain-and-suffering damages the jury awarded. Johnson's lawyer argued for $1 million a year for the next 33 years. But Monsanto's lawyers argued that Johnson is expected to live for two more years — an argument that appeared to resonate with Bolanos who mulled out loud about fashioning an order reducing the entire verdict to under $9 million.

Ultimately, Bolanos ordered lawyers to submit written argument by Friday and said she would rule after that.

Johnson and his lawyers left court without comment. So did Monsanto's legal team.

However, Bayer AG, which acquired Monsanto in June, said it agreed with the judge and "continues to believe that the evidence at trial does not support the verdict and the damage awards."

"The jury's verdict was wholly at odds with over 40 years of real-world use, an extensive body of scientific data and analysis ... and approvals in 160 countries, which support the conclusion that glyphosate-based herbicides are safe when used as directed and that glyphosate is not carcinogenic," Bayer's statement said.

"Tentative rulings are common in California and it's rare for judges to reverse themselves," said David Levine, a professor at the University of California's Hastings Law School in San Francisco.

During the hearing, the judge said she was concerned with improper statements Johnson's lawyer Brent Wisner made during his closing arguments. Despite the judge's order not to, Wisner compared Monsanto to tobacco companies and said company executives would be drinking champagne in their boardroom if the jury sided with the St. Louis-based company.

The judge admonished the jury to disregard those comments at the time, but wondered Wednesday if they entitled Monsanto to a new trial.

"It was intentional and purposeful," Monsanto attorney George Lombardi argued.

Johnson's lawyer Michael Miller said the judge's admonition during the closing arguments was sufficient.

“The jury did not miscarry justice,” Miller said. “Its decision was unanimous. It should be respected.”